Appeal No. 98-2247 7
Application No. 08/108,822
The sole relevant statement in this respect found in Ostro is that, “[t]he lipid is not
necessarily phospholipid but this is the most commonly used component.” See page 28.
The examiner however, apparently interprets the statement in Ostro as providing for the
utilization of any lipid in liposome formation. Accordingly, the examiner concludes that
the disclosure of appellants’ preferred lipid by Klein is sufficient to establish a prima facie
case of obviousness.
In reaching that conclusion, however, the record before us is necessarily based
upon several unsupported assumptions. Initially, it is requisite that lipids in general are
able to form liposomes. On this record, that fact has not been established. It is further
assumed on the record that the cholesteryl hemisuccinate disclosed by Klein is a lipid.
Klein however, never states that cholesteryl hemisuccinate is a lipid.
Moreover, lipids have been defined in part as “[a]ny of a group of substances
that generally are soluble in ether, chloroform or other solvents for fats, but are only
3
sparingly soluble in water.” In contrast, although Klein discloses a preferred sterol salt
of the claimed subject matter, cholesteryl hemisuccinate, we find that Klein describes
cholesteryl hemisuccinate as a water soluble cholesterol salt. See Abstract, column 2,
lines 6-8, 42-52, and 68 through column 3, line 1. Accordingly, on this record, the
examiner fails to establish as a fact that the cholesteryl hemisuccinate is a lipid.
3See Webster’s Third New International Dictionary, p. 1318 G. & C. Merriam Co., 1971.
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